While contesting Rep. Charles Rangel’s primary congressional victory, lawyers for Sen. Adriano Espaillat raised eyebrows Monday by floating the possibility of a redo election. At the moment, with a couple of thousands ballots left to be counted, Espaillat’s camp is holding its powder. But if Rangel’s lead — now standing at 802 votes — keeps shrinking, Espaillat could ask the courts to order a new vote. The campaign said it filed a petition asking for a re-vote Tuesday, but only to keep its options open in case it finds irregularities, since there’s a 10-day statute of limitations on such claims. Such a redo scenario would be highly unusual in New York. But it’s not unheard of in disputed primary races. “It’s granted in extraordinarily rare situations,” said Jerry Goldfeder, a veteran Democratic election attorney. A razor-thin margin, alone, isn’t enough to warrant a do-over. Under state election law: “The court may direct reassembling of any convention or the holding of a new primary election, or caucus where it finds there has been such fraud or irregularity as to render impossible a determination as to who rightfully was nominated or elected.”
Election experts are hard-pressed to come up with recent example of primary redos. There’s the case of Brooklyn Assemblyman Jim Brennan, a Democrat who was first elected in a redo vote in 1984 after a judge ruled that the first contest — with just two votes separating him from his challenger — was too close to call. For Espaillat to raise serious doubts about the legitimacy of an outcome, he’ll have to show that the number of invalid ballots far exceeds Rangel’s victory margin. “If 10 votes separate a candidate, the challenger must be able to demonstrate that approximately 70 or 80 people voted who were not eligible to vote,” Goldfeder said. And Espaillat can’t simply allege voter suppression: “There’s no way of demonstrating who that person would have voted, and the judges are very, very reluctant to allow attorneys to ask who they might have voted for,” said Goldfeder.